Reverend Clement Nyathi v The Trustees for the Time Being of the Apostolic Faith Mission of Africa and Others

This application arose from a long-standing ecclesiastical conflict within the Apostolic Faith Mission in Africa (AFM). In HB 189/18, MABHIKWA J issued a decree of perpetual silence against certain litigants, namely Claudius Manamela, Rosewell Zulu and others, restraining them from commencing litigation without leave of the court. Reverend Nyathi was a respondent in that case, not among those interdicted. Despite this, PHIRI J in HC 2406/19 made an order barring Reverend Nyathi from instituting legal proceedings without prior leave of the High Court, purporting to be guided by the earlier judgment in HB 189/18. Reverend Nyathi brought this application for leave to sue, contending that PHIRI J's judgment mistakenly conflated the parties affected by MABHIKWA J's decree with him, thereby unjustly preventing him from approaching the courts.

• Whether the order by PHIRI J in HC 2406/19 improperly extended the decree of perpetual silence to the applicant, thereby conflicting with MABHIKWA J's order in HB 189/18
• Whether a decree of perpetual silence can be extended to a party who was not specifically named in the original order
• Whether the extension of the perpetual silence decree violated the applicant's constitutional right of access to courts under section 69 of the Constitution of Zimbabwe, 2013
• Whether the requirements for granting a decree of perpetual silence against a vexatious litigant were met in this case

a) The decree of perpetual silence granted against Reverend Clement Nyathi in HC 2406/19 be and is hereby set aside. b) It is declared that the order granted by MABHIKWA J in HB 189/18 does not apply to Reverend Clement Nyathi. c) The applicant is granted leave to sue the respondents in this or any competent court without the requirement to first obtain leave of the High Court. d) There shall be no order as to costs.

A decree of perpetual silence is an exceptional remedy that must be granted only against specifically identified parties based on a proven track record of vexatious litigation that undermines judicial processes. Such a decree cannot be extended by implication to parties who were not named in the original order, even if they were involved in related litigation. The right of access to courts under section 69 of the Constitution of Zimbabwe, 2013, is a fundamental right that can only be restricted where justified by due process. A court errs in law when it extends a perpetual silence decree to a party who was not named in the original order and against whom no pattern of frivolous or vexatious litigation has been demonstrated.

The court made observations about the proper standard for granting decrees of perpetual silence, citing Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa, and Corderoy v Union Government (Minister of Finance) 1918 AD 512, noting that repeated and persistent litigation on the same cause of action involving the same parties may justify intervention. The court also referenced Zimbabwe Anti-Corruption Commission v Mangwiro SC 117/22 to underscore the court's duty to jealously guard the right to be heard and access to remedies. The court noted that rule 29(1)(a) of the High Court Rules 2021 allows rescission where a judgment is erroneously sought or granted, and that PHIRI J's order was a classic example of such an error. The court observed that the perpetuation of such errors in subsequent applications amounts to procedural injustice.

This judgment is significant in Zimbabwean law for establishing clear limits on the application of decrees of perpetual silence. It confirms that such exceptional remedies can only be applied to parties specifically named in the order and cannot be extended to others by implication or mistaken interpretation. The case reinforces the constitutional protection of the right of access to courts under section 69 of the Constitution of Zimbabwe, 2013, and emphasizes that procedural bars to litigation must comply with due process and be based on proven patterns of vexatious litigation. It serves as an important safeguard against the improper restriction of litigants' fundamental rights and demonstrates the courts' willingness to correct errors that undermine access to justice.